The government is not supposed to be simply granted a stay as a matter of course. A stay is supposed to be for when the appellant has a reasonable likelihood to prevail on the merits, and will suffer irreparable harm from compliance with the lower court ruling, and that this harm is greater than the harm suffered by the respondents if the ruling is not complied with. But it's basically become this special privilege where if the government loses, they get to say "we don't like this result and don't want to comply with it until the appeals are exhausted", meanwhile if you lose a trial in a district court, your ass is going to jail (or at least complying with a civil ruling) while the appeals process works its way to its final conclusion. At the very least, if the Supreme Court was going to rule that both the district court and the 10th Circuit were wrong to deny a stay, they should give at least a sentence or two explaining why.

Interesting little tidbit: not all states (about half iirc) don't recognize or allow for common-law marriage. But for (most, not all) Federal purposes, you can claim common-law marriage in all 50 states. This isn't new- it's a decision the Feds made a long time ago to provide for uniformity nationwide in terms of tax treatment of CLMs. So I don't see why, post-Windsor, same-sex couples in every state can't simply claim a common-law marriage for Federal purposes, even if they can't go to the expense of traveling to a state that will issue them a certificate.

To the degree the Feds do require a valid state civil marriage, though, I think the article is incorrect that this marriages would now be invalid under Utah law but valid under state law. If they're not valid according to the state that issued them, they're not valid for Federal purposes, either. Windsor only required the Feds to recognize all valid state marriages equally.

Churchill2004:So I don't see why, post-Windsor, same-sex couples in every state can't simply claim a common-law marriage for Federal purposes, even if they can't go to the expense of traveling to a state that will issue them a certificate.

So what you're saying is their is a BACK-DOOR gay marriage in every state.

I understand the order of operations is slightly different, but... same argument, no?

Similar, but the Court didn't exactly rule that way. They denied standing, which meant that the Prop 8 supporters didn't have good cause to bring the case, and the case had to be thrown out. Anything they said beyond that was dicta, which means it doesn't have any real legal weight to speak of. It's persuasive, and can make for a decent hint on which side at least some justices will take, but it's not binding, and the justices who didn't write the ruling may or may not agree with that part.

It will be very interesting to see if UT can conjure up any additional arguments that haven't already been made. Because even though Prop 8 lost on standing, they didn't have much in their briefs beyond couch fainting and pearl clutching rhetoric. Read the briefs in civil rights cases like Loving v. VA and then read the briefs in marriage equality cases, and the arguments on both sides are almost identical (natural order/societial tradition versus individual liberty/privacy). That's why I'll be shocked if SCOTUS upholds UT's ban. I believe they're granting cert so that they can get this issue out of the way once and for all (If UT's constitutional ban goes down, so do all the similar bans in other states).

Odd as it seems, those signs actually make me feel a bit hopeful. They show that not only is this bigoted bullshiatnothing new, and nothing we haven't been able to overcome in the past, but also that the "communism/socialism=anything I don't like" idiocy has been around just as long. As bad as these reactionary jackasses are, idiots have always been idiots, and they aren't actually getting "worse."

Last Man on Earth:Odd as it seems, those signs actually make me feel a bit hopeful. They show that not only is this bigoted bullshiatnothing new, and nothing we haven't been able to overcome in the past, but also that the "communism/socialism=anything I don't like" idiocy has been around just as long. As bad as these reactionary jackasses are, idiots have always been idiots, and they aren't actually getting "worse."

You have to admit though that the spelling and grammar on the signs has gone a little downhill over the years.

And this why the SCOTUS ruling was too short and caused more problems than it solved. It was clear their was going to be a problem with the gay marriages already done in Utah, they should have given direction on how to handle those.

Biological Ali:Last Man on Earth: Odd as it seems, those signs actually make me feel a bit hopeful. They show that not only is this bigoted bullshiatnothing new, and nothing we haven't been able to overcome in the past, but also that the "communism/socialism=anything I don't like" idiocy has been around just as long. As bad as these reactionary jackasses are, idiots have always been idiots, and they aren't actually getting "worse."

You have to admit though that the spelling and grammar on the signs has gone a little downhill over the years.

I understand the order of operations is slightly different, but... same argument, no?

Similar, but the Court didn't exactly rule that way. They denied standing, which meant that the Prop 8 supporters didn't have good cause to bring the case, and the case had to be thrown out. Anything they said beyond that was dicta, which means it doesn't have any real legal weight to speak of. It's persuasive, and can make for a decent hint on which side at least some justices will take, but it's not binding, and the justices who didn't write the ruling may or may not agree with that part.

I understand the order of operations is slightly different, but... same argument, no?

I feel bad for those who have already got married, and a little surprised that Sotamayor let it go up to SCOTUS (unless it was mandatory), but this might be the test case, with standing, for all the marbles.

I understand the order of operations is slightly different, but... same argument, no?

I feel bad for those who have already got married, and a little surprised that Sotamayor let it go up to SCOTUS (unless it was mandatory), but this might be the test case, with standing, for all the marbles.

/how old are Thomas and Scalia again?

Sotamayor wants the big dance to go down. She and Ginsburg likely think they can pull Kennedy over to their side and put the issue to bed for the whole country permanently.

Last Man on Earth:Odd as it seems, those signs actually make me feel a bit hopeful. They show that not only is this bigoted bullshiatnothing new, and nothing we haven't been able to overcome in the past, but also that the "communism/socialism=anything I don't like" idiocy has been around just as long. As bad as these reactionary jackasses are, idiots have always been idiots, and they aren't actually getting "worse."

capn' fun:It will be very interesting to see if UT can conjure up any additional arguments that haven't already been made. Because even though Prop 8 lost on standing, they didn't have much in their briefs beyond couch fainting and pearl clutching rhetoric. Read the briefs in civil rights cases like Loving v. VA and then read the briefs in marriage equality cases, and the arguments on both sides are almost identical (natural order/societial tradition versus individual liberty/privacy). That's why I'll be shocked if SCOTUS upholds UT's ban. I believe they're granting cert so that they can get this issue out of the way once and for all (If UT's constitutional ban goes down, so do all the similar bans in other states).

The fact that they couldn't present compelling reasons for their objection to gay marriage was precisely why they lost on standing. They couldn't prove that they were the injured party because all they could come up with was pearl clutching and couch fainting. Oh, and Jesus. Can't forget him.

xalres:capn' fun: It will be very interesting to see if UT can conjure up any additional arguments that haven't already been made. Because even though Prop 8 lost on standing, they didn't have much in their briefs beyond couch fainting and pearl clutching rhetoric. Read the briefs in civil rights cases like Loving v. VA and then read the briefs in marriage equality cases, and the arguments on both sides are almost identical (natural order/societial tradition versus individual liberty/privacy). That's why I'll be shocked if SCOTUS upholds UT's ban. I believe they're granting cert so that they can get this issue out of the way once and for all (If UT's constitutional ban goes down, so do all the similar bans in other states).

The fact that they couldn't present compelling reasons for their objection to gay marriage was precisely why they lost on standing. They couldn't prove that they were the injured party because all they could come up with was pearl clutching and couch fainting. Oh, and Jesus. Can't forget him.

That was a funny oral argument.

Justice: What is your line of thinking to prove that same-sex marriage injures citizens in some way?

In California, for couples married in the period between the court allowing gay marriage and the state constitution being amended to forbid gay marriage, it was held unconstitutional for the state to strip away married status after it had been legally granted. I think it was only a state supreme court decision, but it is still precedent (if only suggested and non-binding in Utah).

So there may be still be some valid gay marriages in Utah - for those people married before the stay - despite the state's best efforts.

In the 1955 sequel to the landmark Brown v. Board of Education decision, the court famously -- and unwisely -- told the Southern states to desegregate "with all deliberate speed." There followed years of resistance, judicial judgments and ultimately the sending of airborne troops to Little Rock, Arkansas. The Windsor opinion was a modern Brown. It declared a broad principle, then tried to acclimate the public through gradual acquiescence. Once again, this approach was a mistake.

What? Brown defined a clear rule and compelled speedy implementation. Windsor did not declare the rule. It nailed down the context and set the stage for a slow transition before the SCOTUS lays down the hammer in a few years in another case. It is an entirely different legal play and...

Wait, this was written by a law professor at Harvard?

IANAL, but this article seems ridiculous to me. There are similarities between Brown and Windsor, but there are also major differences. What does the author want Windsor to be if not what it is? The only way for it to be different is for it to be more like Brown and declare the rule and compel speedy implementation.

The point he's making is "all deliberate speed", despite sounding strong, was actually way too vague and left way too much wiggle room, which led to Brown being resisted and re-litigated well into the '70s.

The point he's making is "all deliberate speed", despite sounding strong, was actually way too vague and left way too much wiggle room, which led to Brown being resisted and re-litigated well into the '70s.

Well first of you and yours are so cute together. Anyway just a girl that was was close but it wouldn't have counted. Anyway excellent points up above and well there is gonna be lots of crying because almost half the country is gonna be upset. but I can only see this going one way.

The point he's making is "all deliberate speed", despite sounding strong, was actually way too vague and left way too much wiggle room, which led to Brown being resisted and re-litigated well into the '70s.

Thanks. I was sure I was missing something. Me not being a law prof and all.